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Tuesday, April 3, 2007

Standing Up for the Environment

In one of its first blockbuster decisions of the term, the Supreme Court rebuked the Environmental Protection Agency yesterday, finding that the EPA had provided “no reasoned explanation” for its refusal to regulate global warming-inducing greenhouse gases. Paradoxically, the EPA—an agency whose mission is to protect the environment—had taken a strikingly narrow view of the Clean Air Act, arguing that the law did not empower it to regulate greenhouse gases. The Court disagreed, holding that the agency may not eschew the responsibility Congress gave it to regulate these air pollutants in order “to pursue other priorities of the Administration or the President.”

In an opinion by Justice Stevens, the majority chided the EPA for offering “a laundry list of reasons not to regulate” full of “policy judgments” that “have nothing to do with whether greenhouse gas emissions contribute to climate change.” The agency, wrote Justice Stevens, does not have a “roving license to ignore the statutory text” and may not "refus[e] to execute domestic laws.” If the EPA continues to believe it would be “unwise to [regulate greenhouse gases] at this time,” the agency must “ground its reasons for action or inaction in the statute.”

But in a strongly worded dissent, Chief Justice Roberts, joined by Justices Alito, Scalia, and Thomas, argued that regardless of whether the EPA had acted improperly in refusing to regulate the gases, none of the petitioners (12 states, three cities, an island government, and numerous environmental organizations) had the right to sue (in legal parlance, the Chief Justice asserted that they didn't have "standing"). Chief Justice Roberts argued they lacked standing because they could not prove that they suffered an injury caused by the EPA's refusal to regulate greenhouse gases. He dismissed the petitioners' scientific evidence of injury and causation as “speculative” and “pure conjecture.” He further reasoned that petitioners should not have the right to sue because the harm to them was too general: global warming “is a phenomenon ‘harmful to humanity at large,’” and the petitioners suffered no more “actual harm” than “the public generally.” Therefore, concluded Chief Justice Roberts, they could not sue to enforce the law.

By dismissing the environmental science in this case as too riddled with "complexities" to constitute firm evidence of harm and causation, Chief Justice Roberts is seeking to erect a near insurmountable hurdle for plaintiffs in environmental cases, where the science always involves some uncertainty. Moreover, the dissenters’ logic, that if harm is “widely shared” it is not “concrete” and cannot be remedied in federal court, poses a unique threat to the future of environmental law. Harm to the environment is—by definition—a shared injury, and although the court’s two newest justices paid lip service to environmental regulation during their confirmation hearings, this dissent paints a disturbing picture of their true stance on the issue. The more people the harm threatens, declared the four dissenters, the less likely we will be to let any of them through the courthouse door for recourse.

The views of Chief Justice Roberts and Justice Alito should come as no surprise. Prior to his confirmation to the Supreme Court, as a lawyer in the Reagan administration, the Chief Justice argued that the Justice Department was "not raising standing challenges in the most vigorous fashion," and that "[t]his was particularly true in the environmental area." Then, as a lawyer in the George H.W. Bush administration, he pursued a policy of seeking the dismissal of cases – particularly environmental cases – on standing grounds. But the Senate—perhaps placated by Chief Justice Roberts’ vague hearing testimony that "environmental interests, … are all protected under the law [and] standing can encompass, certainly, environmental harms," voted to confirm him. Justice Alito's pre-confirmation record also should have made his views on standing painfully clear to the Senate: while on the Third Circuit he joined perhaps the harshest environmental standing decision ever written.

Thankfully, despite the sustained efforts of the Bush administration to stack the federal courts with judges and justices hostile to environmental causes, Chief Justice Roberts' view in this case—which would virtually close the courthouse door to supporters of the environment—did not carry the day. But lamentably, now that the Senate has confirmed these two justices despite their records on environmental issues, it is merely one vote away.